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The case against anti-abortion "admitting privileges" laws, in one court ruling

A federal appeals court struck down Scott Walker's 2013 law that would close half of Wisconsin's abortion clinics.
A federal appeals court struck down Scott Walker's 2013 law that would close half of Wisconsin's abortion clinics.
Andy Manis/Getty Images

One of Wisconsin Gov. Scott Walker's signature anti-abortion laws was dealt a major defeat in court this week. The 2013 Wisconsin law, which required abortion providers to have admitting privileges with a local hospital, has never been enforced. Courts have blocked it ever since it passed because it threatened to close two of the state's four abortion clinics. The new ruling comes from the Seventh Circuit Court of Appeals, which upheld an earlier district court ruling that the law was an unconstitutional "undue burden" on women seeking abortion.

The Wisconsin law is similar to the Texas law that's about to spark the biggest Supreme Court ruling on abortion in 25 years. And the federal judge who struck down Wisconsin's law had absolutely nothing good to say about the arguments for upholding it.

Judge Richard Posner makes a persuasive case that admitting privileges have no medical benefit for women and no purpose other than to close abortion clinics. The full opinion is worth reading, but here's the CliffsNotes version of what Posner argued (bold emphasis added for key lines and sick burns):

1) Admitting privileges are useless if an abortion patient has a true medical emergency

A doctor granted admitting privileges by a hospital becomes a member of the hospital’s staff and is authorized to admit patients to that hospital and to treat them there; that is the meaning of "admitting privileges." Of course any doctor (in fact any person) can bring a patient to an emergency room to be treated by the doctors employed there. A hospital that has an emergency room is obliged to admit and to treat a patient requiring emergency care even if the patient is uninsured. ... A woman who experiences complications from an abortion (either while still at the clinic where the abortion was performed or at home afterward) will go to the nearest hospital, which will treat her regardless of whether her abortion doctor has admitting privileges.

2) The "evidence" in favor of admitting privileges was embarrassingly bad

The strongest evidence the court heard came from one doctor, who thinks maybe one woman could have avoided a hysterectomy if her doctor had called the hospital — which you don't need admitting privileges to do anyway:

That is the only evidence in the record that any woman whose abortion resulted in a medical complication has ever, anywhere in the United States, been made worse off by being handed over by her abortion doctor to a gynecologist, or other specialist with relevant expertise, employed by the hospital to which she’s taken. And the example doesn’t actually have anything to do with admitting privileges. The abortion doctor didn’t need admitting privileges at a hospital in order to call an ambulance to take his patient to the nearest hospital, or to communicate with the treating doctor at the hospital—neither of which he did.

And no testimony from an actual medical provider strongly favored admitting privileges:

The only testimony presented to the legislature that admitting privileges are important to continuity of care was presented by a representative of Wisconsin Right to Life who happens not to be a doctor.

3) Admitting privileges can be literally impossible for abortion providers to get

Not because they're incompetent physicians, but because the nature of their practice often doesn't let them meet specific hospital requirements:

But the two doctors at the fourth clinic, AMS, have been unable to obtain such privileges at any hospital even though 17 hospitals are within a 30-mile radius of the clinic. Not that its doctors haven’t tried to obtain the privileges. ... The other AMS doctor was also rejected by Aurora-Sinai, which told him he was ineligible to obtain full admitting privileges because he would be unable to admit the required minimum of 20 patients per year, and that he could not obtain courtesy privileges (which differ from full privileges in allowing a doctor to admit only a very few patients) without already having staff privileges at another hospital. Another hospital, St. Joseph’s Community Hospital of West Bend, requires applicants for obstetrics/gynecology admitting privileges to have delivered 100 babies in the previous two years, by which of course they mean live babies; and delivering live babies is not what abortion doctors do.

4) Abortion is already very safe, and there's no evidence that admitting privileges make it any safer

In the five-year period 2009 to 2013, only 12 women who had abortions at clinics in Wisconsin experienced complications requiring transfer from clinic to hospital. ... There is no evidence that any of these women received inadequate hospital care because the doctors who had performed their abortions lacked admitting privileges.

The most credible studies submitted to the court, Posner said, find that abortion is 14 times less deadly than giving birth. The rates of complications are less than 1 percent, and the rates of serious complications requiring hospital admissions are one-twentieth of 1 percent. And the counterargument that abortion is dangerous wasn't backed up by evidence:

The principal witness for the State of Wisconsin, Dr. Thorp, mentioned earlier, testified that the death rate for women who undergo abortions is the same as for other pregnant women. But he could not substantiate that proposition and admitted that both rates are very low.

5) There's plenty of evidence that Wisconsin's law had no other purpose than to close abortion clinics

Wisconsin lawmakers only gave abortion clinics two days to comply with the new law. That's a dead giveaway that lawmakers weren't doing this for women's health and had no intention of letting abortion clinics comply to avoid being closed down, Posner says:

There was no way an abortion doctor, or any other type of doctor for that matter, could obtain admitting privileges so quickly, and there wouldn’t have been a way even if the two days hadn’t been weekend days. As the district court found, it takes a minimum of one to three months to obtain admitting privileges and often much longer. ... The state tells us that "there is no evidence the [Wisconsin] Legislature knew AMS physicians would be unable to comply with the Act." That insults the legislators’ intelligence. How could they have thought that an abortion doctor, or any doctor for that matter, could obtain admitting privileges in so short a time as allowed?

And that's unconstitutional:

Until and unless Roe v. Wade is overruled by the Supreme Court, a statute likely to restrict access to abortion with no offsetting medical benefit cannot be held to be within the enacting state’s constitutional authority.

Posner pointed out that Wisconsin didn't make a peep about requiring admitting privileges for similar procedures that are a lot more dangerous than abortion:

No other procedure performed outside a hospital in Wisconsin appears to be indifferent to complications of any other outpatient procedures, even when they are far more likely to produce complications than abortions are. For example, the rate of complications resulting in hospitalization from colonoscopies done for screening purposes is four times the rate of complications requiring hospitalization from first-trimester abortions.

6) Requiring admitting privileges would actually make abortion less safe

Posner said this is because some clinics will close, which will overload other clinics, forcing women to wait longer and have later, potentially more dangerous abortions. Second-trimester abortions are still very safe overall (a 1.3 percent rate of major complications), but they're not nearly as safe as first-trimester abortions (0.05 percent rate). This is completely at odds with the requirement that lawmakers advance a "legitimate interest" in protecting women's health when they regulate abortion:

There are those who would criminalize all abortions, thus terminating the constitutional right asserted in Roe and Casey and a multitude of other decisions. ... But what makes no sense is to abridge the constitutional right to an abortion on the basis of spurious contentions regarding women’s health and the abridgment challenged in this case would actually endanger women’s health. It would do that by reducing the number of abortion doctors in Wisconsin, thereby increasing the waiting time for obtaining an abortion, and that increase would in turn compel some women to defer abortion to the second trimester of their pregnancy — which the studies we cited earlier find to be riskier than a first-trimester abortion.

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